WHAT IS A DEPOSITION
A deposition is a question-and-answer session that takes place in an attorney's office. Usually present are the attorneys for the parties, the parties themselves, and a court reporter.
A deposition is your testimony, under oath. The answers you give at a deposition are testimony. You will be asked questions by the opposing attorney, and the questions and your answers will be recorded by an official court reporter. There is little difference between testimony at a deposition and testimony in the courtroom, except there is no judge presiding. Rulings over inadmissible matters will be made by the judge at the time of the trial, not on the taking of the deposition.
PURPOSE OF A DEPOSITION
Opposing counsel is taking your deposition for four main reasons:
1. They want to find out what facts you have in your actual knowledge and possession regarding the issues in your lawsuit. They are interested in what your story is now and what it is going to be at the trial.
2. They want you to testify to a specific story so that you will have to tell the same story at the trial and they will know in advance what your story is going to be.
3. Your testimony given in a deposition may be read at trial. They hope to catch you in a lie or omission because if they were to do so, they can claim at the trial that you are not a truthful person and, therefore, your testimony should not be believed on any of the points, particularly the crucial ones.
4. A deposition may be used to narrow the issues in your case. Stipulations of fact and other agreements may be made during the course of the deposition which may substantially shorten the trial.
All of the above are very legitimate purposes and opposing counsel has every right to take your deposition for these purposes and in this fashion. Your attorney has the light to ask questions of you during the deposition, but usually, your attorney will only ask you questions to clarify an answer which may be confusing. Likewise, we have the same right to take the deposition of the opposing party and witnesses.
If there are some issues about your case that you consider worrisome, those matters should be specifically discussed with your attorney before the start of the deposition.
SUGGESTIONS FOR PREPARATION
There are tried-and-true rules for preparing a witness to testify at a deposition. The following points will help you become a better witness, and could possibly make the difference whether you win or lose your case
1. ALWAYS TELL THE TRUTH when giving your deposition. Failure to tell the truth in a deposition constitutes perjury, which is a crime. You may assume that the attorney questioning you has the ability to make anyone who is playing fast and loose with the truth very uncomfortable.
2. LISTEN TO THE QUESTION. Do not answer any question unless you hear it completely. If you did not hear the question asked, ask the other attorney to repeat or ask the court reporter to read it back.
3. IF YOU DO NOT REMEMBER, SAY SO. Never think that you must have 100% total recall or something even close. Time may heal a broken heart, but it sure does not help your memory. Do what you can before the deposition to refresh your recollection about the incident. Perhaps, you still have paperwork about your particular incident. Review it. Perhaps your diary from that year is still around-locate it and read it. Then, if a question comes up at the deposition that you do not recall the answer to, tell the attorney, "I'm sorry, but I don't remember that . . ."
4. DO NOT NARRATE. Moreover, I really mean that-listen to the question; if you can answer it with a yes or a no, do just that. When you add more to your answer, you simply give the attorney more ammunition to use against you. Don't think you have to prove your case or defend yourself at a deposition-you do not. You prove your case at trial-and only at trial. Remember, attorneys contrary to popular belief are human too; they get tired. When you answer a question with a yes or no response, the attorney works harder. Keep that in mind! If your attorney does not object to a question that calls for you to narrate, he better have a good reason for allowing you to answer that type of question; if not, you need another attorney.
5. MAKE SURE YOU UNDERSTAND THE QUESTION. If you do not understand the question, or think you could answer it in another way, ask the attorney to either repeat or rephrase the question. Make sure the attorney keeps the question short and to the point. The longer the question is, the greater the possibility that you will answer it wrongly. Make sure the attorney is asking only one question at a time. If you hear two questions, and your attorney does not say anything, ask the deposing attorney which question he would like you to answer first.
6. PAUSE AFTER EACH QUESTION. This gives you an opportunity to think and gives you time to make sure you understand the question. It also permits your attorney to formulate an objection to the question, if one is appropriate. You may also want to remember that if your attorney objects on the ground that the question is "unclear" or "vague", then maybe you should agree and ask that the question be rephrased.
7. DO NOT GUESS at any answer If you do not know the answer to a question, even though you feel you would appear ignorant or evasive saying that you do not know, you should nevertheless do so, because a guess or estimate is always wrong. "I don't know" is a very acceptable answer. It's that simple.
8. THE DEPOSING ATTORNEY IS NOT YOUR FRIEND. No matter how friendly or helpful the deposing attorney is, he works for the other guy and has his reasons for being nice to you. This is one of my favorite tactics. I lull the witness into a false sense of security by asking him if he is comfortable, does he need to take a break, or, would he like something to drink. Eventually, the witness wants to start helping me find the answer I'm looking for. Be respectful, but be vigilante.
9. DON'T BE AFRAID TO ASK TO SPEAK WITH YOUR ATTORNEY. You have your attorney with you to help you. There is nothing wrong with asking to stop the deposition so you can speak with your attorney for a moment. You do not want to overdo this, but 2 or 3 times during a 4-hour deposition are fine. And remember, if you follow these rules and answer the questions as I've suggested, you'll be surprised how few times you'll need to speak with your attorney during the deposition.
10. DO NOT VOLUNTEER INFORMATION. Answer the question that is asked of you and then stop.
11. NO EXPLANATIONS. Never attempt to explain or justify your answer. You are there to give the facts as you know them and you are not supposed to apologize or attempt to justify those facts. Any attempt at such would make it appear that you doubt the accuracy or authenticity of your own testimony.
12. BE VERBAL. Speak loudly enough so everyone can hear you. Do not nod or make gestures; these cannot be recorded by the court reporter.
13. DO NOT ANSWER QUESTIONS WHEN YOU ARE TIRED. Mental fatigue starts to set in after about 30 or 40 minutes of answering questions when you're in a deposition. Do not be afraid to ask to take a break. Do this as often as necessary. When you are tired and you answer questions at a deposition, the answers tend to be sloppy. The sloppy answers will come back to haunt you at trial-I guarantee it!
14. REMAIN CALM AND POLITE. Do not lose your temper no matter how hard you are pressed. If you lose your temper, you may be playing into the other side's hands. Do not argue with the other attorney. Give him the information in the same tone of voice and manner that you do in answer to your own attorney's questions. The lawyer has the right to ask questions, and your own attorney will object to any inappropriate questions or actions by the other lawyer.
15. BE AWARE OF QUESTIONS INVOLVING DISTANCES AND TIME. If at any time you estimate distances or time in any of your answers, state that it is an estimate.
16. QUOTING OTHERS. If you are testifying with regard to conversations, make clear whether you are paraphrasing comments made by you or other persons, or whether you are quoting directly what was said.
17. NEVER SAY "NEVER". Eliminate adjectives and superlatives such as "never" and "always" from your vocabulary.
18. DO NOT TESTIFY about documents, or about what other people know, or about your state of mind at a particular time unless you are specifically asked.
19. NOTES, DIARIES, ETC... Do not plan to use any notes, diaries or any other documents to assist you during your deposition unless such document has been specifically reviewed by your attorney. Use of notes to refresh your memory or any other such documents may be examined by the other side.
20. REQUESTED DOCUMENTS TO BRING WITH YOU. You may have been instructed to produce documents at your deposition. If so, you should bring three copies of the documents. One copy will be provided to opposing counsel, one copy will be kept by you, and one copy will be kept by your attorney. You should also bring the originals in the event there 4 any question as to the accuracy of the copies.
21. DO NOT BRING DOCUMENTS UNLESS YOU ARE TOLD TO BRING THEM. If information is in a document which you need to see in order to testify truthfully and accurately, request the other attorney to provide you with a copy of the document. Do not agree to supply any documents or information and do not bring documents with you unless you are specifically instructed to do so by your attorney. If you are asked to supply documents or information, let your attorney handle this issue. Do not, without the request of your attorney, reach into your pocket for a social security card, driver's license, or any other document. Do not ask your lawyer to get anything which is in his or her file. Do not turn to your attorney and ask for information or do not turn to another witness, if one should be present, and ask him for information. When confronted with documents, examine them carefully. If you haven't seen a particular document before or did not prepare it, don't try to guess what it means. Do not vouch for the accuracy of a document. Also, be careful not to interpret a date shown on a document as being the true date of its writing.
22. MISTAKES. If at anytime during the deposition you realize you have given an erroneous answer or you have misspoken, correct your answer as soon as you recognize your error. Tell either the opposing lawyer that you misspoke, or tell your own attorney at the first available opportunity.
23. LISTEN. Do not let the opponent put words in your mouth. If necessary restate or rephrase in your own words the attorney's question. Pay particular attention to introductory clauses preceding the question. Do not accept the other attorney's summary of your testimony unless it is completely accurate.
24. RELAX. You are not expected to know by memory all details of what was said when, by whom and where over a long period of time. Do not offer an answer requiring you to consult records not available at the deposition or requiring you to consult your friends and associates for the answer.
25. DON'T BE EMBARRASSED about admitting that you have met and consulted with your attorney prior to giving your deposition. If asked what you talked about, simply say your attorney merely instructed you to be truthful and honest. What else you and your attorney discuss is confidential and should not be revealed to the other side.
26. DO NOT BE AFRAID. There is no one who is going to harm you and there is no need to show fear or anxiety or to be afraid to answer questions truthfully.
27. BEWARE of questions by the other attorney beginning with words similar to "is that all?" THE OTHER SIDE IS ATTEMPTING TO FREEZE YOUR TESTIMONY. A good answer to such a question would include phrases such as "To the best of my recollection at the present time." Also, beware of compound questions.
28. NO JOKES. Never joke in a deposition. Try to avoid wisecracks and obscenities. The humor would not be apparent on the cold transcript and may look crude or untruthful.
29. OBJECTIONS TO QUESTIONS. There may be one or more questions asked of you during the deposition which your attorney will find objectionable because it is not part of the proper discovery in the case. In such an instance, your attorney will instruct you not to answer the question. Occasionally, the opposing attorney will ask that such question be "certified" meaning that it will presented to the judge at a later date to determine whether you should answer the question.
30. DO NOT CONVERSE WITH OPPONENT. After the deposition is over, do not chat with your opponents or their attorney. Remember, the other attorney is your legal enemy. Do not let his friendly manner cause you to drop your guard or become chatty.
31. DO NOT SPECULATE. Do not try to figure out before you answer whether a truthful answer will help or hinder your case. Answer truthfully. Your attorney can deal with the truth effectively, but is handicapped when you answer any other way.
32. DO NOT BE EAGER TO LEAVE. Psychology plays a big role at a deposition. If the deposing attorney sees that you are relaxed, comfortable, and not in a hurry to leave his office, he is likely to make it a short deposition if he can. However, if he sees you are uncomfortable and cannot wait for the first break to occur, he will prolong the deposition and perhaps even become belligerent in his questioning technique. He knows that by doing so, there is a good possibility he can resolve the case sooner, to his client's satisfaction. You will not want to go to trial and endure a similar or worse experience in court.
33. FINAL ADVICE. Your deposition is being taken to provide the opponent with information to be used AGAINST you. You cannot "win" a deposition. So please answer the questions truthfully, but concisely. Do not provide more information than the other attorney has asked for. You are free to consult with your attorney during the deposition and you should if you have any questions about how to answer.
If you remember these rules, your deposition will be a more pleasant experience. It will show the opposing party that you are confident about your legal position, and that you are prepared and are not afraid to go to court if necessary.
